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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA,

Plaintiff,

vs.

DENTSPLY INTERNATIONAL, INC.,

Defendant.

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Civil Action No. 99-005 (SLR)

UNITED STATES' RESPONSE TO DEFENDANT'SOBJECTIONS TO BILL OF COSTS

The United States submits the following response to Defendant Dentsply
International, Inc.'s ("Dentsply") objections to the United States'
Bill of Costs.

I.Trial Transcripts

Costs are taxable under 28 U.S.C. 1920(2) for "[f]ees of the court
reporter for all or any part of the stenographic transcript necessarily
obtained for use in the case." According to Local Rule 54.1(b)(2), the
cost of trial transcripts are taxable, "when either requested by the
Court, or prepared pursuant to stipulation."

In Studiengesellschaft Kohle M.B.H. v. Dart Industries, Inc.,
Civ. A. No. 3952-CMW, 1989 WL 71757, *3 (D.Del. June 21, 1989), the
Court held that although an explicit request by the Court is preferred,
an implied request of the Court is sufficient to support an award of
costs. In that case, the court taxed the costs of trial transcripts
because "[t]he required Findings of Fact and Conclusions of Law and
the post-trial papers on the damages issue 'could not have been adequately
presented without reference to the transcript.'" Id. (citation
omitted). Moreover, "a district court may overlook the lack of prior
approval if the case is complex and the transcripts proved invaluable
to both the counsel and the court." Manildra Milling Corporation
v. Ogilvie Mills, Inc., 76 F.3d 1178, 1184 (Fed. Cir. 1996) (citation
omitted).

In this case, all of these reasons to tax the costs of the trial transcript
apply. The District Court impliedly requested that the trial transcript
be prepared. On the first day of trial, before opening statements, the
Court stated, "[I]t's really a lot easier for me to look at two sources,
the documents you submit and the trial transcript." Tr. at 14. The Court
also stated that "my preference has always been that I have two sources:
I have the trial transcript. I have documents." Tr. at 15. Both parties
cited the transcript extensively in their post-trial papers. Similarly,
the District Court cited it extensively in its opinion.

Dentsply cites two cases in support of its argument that the trial
transcript costs should not be taxed. EMI Group North America, Inc.
v. Intel Corp., C.A. 95-199 (D.Del. June 13, 2000); Schering
Corp. v. Zeneca Inc., C.A. 95-566-RPM (D.Del. Feb. 4, 1998). But
in those cases, there was no evidence of an express or implied request
by the Court. In EMI, the prevailing party relied on a request
by the same district court judge in a different case to support
its argument that the judge wanted a trial transcript prepared in its
case. And the Schering case did not even proceed to trial; the
issue there was whether the prevailing party was entitled to the costs
of a transcript of a pretrial hearing.

Therefore, the United States should recover the full $25,408.50
it incurred for the trial transcript in this case.

II.Depositions

Dentsply objects to the United States' request for reimbursement for
certain deposition transcripts on two grounds. First, Dentsply contends
that the deposition costs for 24 witnesses should not be taxed because
their deposition testimony was not introduced at trial. Yet deposition
costs are regularly taxed under 28 U.S.C. § 1920 regardless of
whether any portion of the deposition is admitted into evidence.(1)
Deposition costs should be taxed so long as the subject matter of the
deposition, at the time the deposition was taken, was not so irrelevant
as to be outside the bound of discovery.(2)

The deposition costs for the 19 witnesses who testified live at trial
(nine for the United States, and 10 for Dentsply) is particularly justified.
Deposition transcripts for a witness testifying live at trial are critical
for a counsel's preparation of a direct or cross examination. Hurley
v. Atlantic City Police Department, Civ. A. Nos. 93-260, 94-1122,
1996 WL 549298, *5 (D.N.J. 1996). The $30,904.81 cost for the
depositions of these 19 live trial witnesses should be taxed. See
Dentsply's Objections, Exh. A (listing the 19 witnesses and itemizing
the cost for each).

Second, Dentsply contends that the deposition costs for 23 witnesses
should not be taxed because only a small portion of their deposition
transcript was read into the record. Yet it was Dentsply, not the United
States, that went out of its way to introduce the vast majority of these
excerpts into the record. On July 26, 2002, well after trial ended,
Dentsply filed a notice of intent to file 84 separate deposition transcripts
with the court. D.I. 464. In response, Judge Robinson reopened the record
and permitted Dentsply to read into the record portions of those transcripts.
Dentsply did so on September 3, 2002. Tr. 4163-4379. Of the 23 depositions
at issue, excerpts from 21 of them were read into the record by Dentsply
during this special, post-trial session. Compare Dentsply Objections,
Exh. A at 2 with Tr. 4379-80. Having asserted the importance
of this deposition testimony back in 2002, Dentsply should not now contend
that this testimony was not important to resolving material issues in
this case. The $17,574.42 cost for the 21 depositions that Dentsply
read into the record on September 3, 2002 should be taxed.

Therefore, the United States should recover a total of $51,012.06
in deposition costs ­ the $30,904.81 for the depositions of live
trial witnesses, the $17,574.42 for the depositions Dentsply read into
the record, and the $2,532.83 that Dentsply is not contesting. The United
States withdraws its request for the additional $3,617.66 it initially
requested in its Bill of Costs.

III.Fees for Exemplification ­ Court Exhibits

A small number of demonstrative exhibits were prepared for the Court's
convenience, to illustrate certain points made during the United States'
Opening Statement and during witness examinations. Some courts have
permitted recovery of the costs of such exhibits. E.g., Rogal
v. American Broadcasting Companies, Inc., Civ. A. No. 89-5235, 1994
WL 268250, *2 (E.D.Pa. June 15, 1994). The United States renews its
request for the $1,095.00 it incurred to prepare these demonstrative
exhibits.

IV.Fees for Exemplification ­ Courtroom Equipment

The United States, with Dentsply, rented several pieces of technological
equipment (e.g,, an overhead projector, a tripod screen, flat
screen monitors) to display exhibits and portions of videotaped depositions
for the Court's convenience. As with demonstrative exhibits, some courts
have held that these costs are recoverable. Cefalu v. Village of
Elk Grove, 211 F.3d 416, 428 (7th Cir. 2000) ("So long as the means
of presentation furthers the illustrative purpose of an exhibit, we
believe it is potentially compensable as exemplification"). The United
States renews its request for the $1,112.50 it incurred in renting
this equipment.

V.Copies: Fees for Dentsply Documents Produced During
Discovery

Dentsply argues that the costs of documents produced by Dentsply in
discovery are not taxable because relatively few were introduced into
evidence. Yet a court in this District has held that the prevailing
party is entitled to recover the costs associated with document production,
without regard to the number of documents ultimately admitted into evidence.
Schering Corp. v. Amgen, Inc., 198 F.R.D. 422, 428 (D.Del. 2001)
("[c]opying documents in response to a discovery request is, by its
nature, necessary for use in preparing Schering's case"). The United
States renews its request for the $20,627.12 it incurred in the
production of Dentsply's documents.

VI.Copies: Fees for Ivoclar Documents Produced During
Discovery

Similarly, Dentsply argues that the costs related to the production
of documents from its closest competitor, Ivoclar, in discovery are
not taxable because few were actually admitted at trial. For the same
reasons, the United States is entitled to recover the $7,694.25
it incurred to obtain these documents.

VII.Conclusion

Costs should be taxed against Dentsply in the amount of $109,954.32
­ $3,617.66 less than that set forth in the initial Bill of Costs,
to reflect the exclusion of certain deposition transcripts.

We hereby certify that copies of the "United States' Response to Defendant's
Objections to Bill of Costs" were served this 6th day of
July 2005, upon counsel for defendant Dentsply International, Inc. as
indicated below: